An Open Primary–Would It Be More or Less Democratic?

The landscape of California politics may be about to change dramatically.

An open primary system for state elections– a primary that allows voters to cross party lines–will appear on the ballot in June 2010. State open primary elections would be similar to municipal elections, although the primary vote getter would not win outright—the top two vote-getters would proceed to a November run-off.

Although the measure was proposed by Sen. Abel Maldonado (R-Santa Maria) in exchange for his vote on the recently-approved budget, the idea had been well researched before. Steve Peace, former California Department of Finance director and Democratic state senator, worked with a group of lawyers for three years to craft a proposal similar to the state of Washington’s nonpartisan primary system. The proposal, titled “The California Independent Voter Project,” was drafted within the narrow legal boundaries provided by the state constitution and a 2000 U.S. Supreme Court decision that invalidated an earlier California open primary law.

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“The principal value of the legislation we drafted is to ensure that a decision is made in the general election, when more people vote,” Peace said. “We spent eight months going through tedious and extensive legal work, not only to ensure its constitutionality, but also to meet California’s political culture.”

Under Peace’s project, voters would still be able to state a party preference upon registering—unlike in Washington—but it would be more of a public declaration than a membership in a party.

“We believe that the freedom of choice of an individual is the fundamental right of every citizen, and no system should contain that right in some sort of fidelity to an organization,” Peace explained.

His primary beefs with the current system are that it lets political parties work as a duopoly to block out competition, and that it produces polarized candidates whose ideologies are skewed compared to citizens at large.

“In my view, both parties have become philosophically corrupt— they’re not policy bodies. They’re election systems,” Peace said. “They’re more interested in getting a majority and more perplexed when they get a majority as to what to do with it.”

Rick Hasen, an elections lawyer who teaches at Loyola Law School, assisted in the drafting of the Independent Voter Project and says the language of the ballot measure is very similar to it.

“I believe it is very strong constitutionally,” Hasen said of the draft initiative originally proposed. Hasen had initially warned that the Legislative Counsel’s office had provided a draft that might not withstand constitutional scrutiny. Gov. Arnold Schwarzenegger has long listed open primaries as a reform he supports, comparing it to his fight to have legislative boundaries be redrawn by an independent commission rather than the Legislature, a measure that voters approved on the November ballot. “When it comes to the open primaries, I can tell you, that (it) is something that both parties hate,” Schwarzenegger said in a speech recently. “It’s not good for politics. But remember, what is not good for politics is good for the people. That’s the bottom line here.”

Maldonado agrees, stating that he requested the open primary measure provision after 10 years of service in the Assembly and Senate and “watching all the dysfunction that goes on.”

“We have had late budgets every year, politicians always taking California to the brink of bankruptcy and putting politics first, instead of the people,” Maldonado said. “I put this forward so we can have a California government that works and a state that will be governable… Right now it’s a broken system, and it needs to change.”

GOP Chairman Ron Nehring vehemently opposes an open primary plan and is calling for party delegates to formally oppose the measure. He believes such a measure would further regionalize and polarize the state, with no Democrat or Republican candidate appearing in some parts of the state. He says the possibility of having to chose between two Democrats or two Republicans after the primary undermines the democratic process and voter choice. Nehring defends the process by which political party candidates are elected—on definitive platforms, by members of the party— as essential to maintaining independence in political parties.

“Primary elections were a progressive reform that gave the power to nominate candidates directly to voters who join political parties,” Nehring said in a statement. “The so-called open primary proposal would reverse that reform, disconnecting rank and file party members from directly choosing party nominees.”

The possibility of parties having to restructure to accommodate a changing political landscape is one that Maldonado acknowledges, but sees as a positive.

“Parties will have to find candidates that appeal to broader California, not just candidates that focus their message to maybe 20 percent of the extreme right or left of the party,” said Maldonado. “This will increase voter participation, turnout and interest.”

The open primary issue may be one of the few on which Democratic and Republican party leaders agree. Jess Durfee, chair of the San Diego Democratic Party, is concerned with several aspects of an open primary system, one being the exact same concern expressed by Maldonado—alienating voters.

“You could easily have two Democrats or two Republicans running against each other in the general election,” Durfee said. “I have friends in Washington, and they hate the system. I was told that in the last election cycle, there were four legislative races in the state where the runoff candidates were the same party…That would significantly reduce voter turnout and disenfranchise huge percentages of voters.”

Durfee also expressed concern that, without party loyalty, candidates would be more significantly exposed to lobbyists and special interest groups with deep pockets. Durfee believes there are other ways to deal with hyper-partisanship in the Legislature, including reducing the supermajority requirement that gives one-third of the Legislature the power to reject a bill.

California, Rhode Island and Arkansas are the only three states that require a supermajority to pass appropriations bills—such as the budget.

“That makes for very hard-line partisan wrangling, like what you saw this budget cycle,” Durfee said. “An open primary doesn’t alleviate that.”

Party leaders and open primary proponents agree on one thing—the need to fix the system that, in Maldonado’s words, “Takes us to these horrible, horrible places where we have to tell voters they might not get tax rebates or that road construction will stop.” In June 2010, Californians will be able to vote on how they want to vote.